Several businesses are suing the Trump administration over the tariffs, arguing they are effectively a tax and need approval from Congress before they can be implemented.

Solicitor General John Sauer argued before SCOTUS on behalf of the Trump administration but didn’t appear to sway the judges, including several conservatives on the bench, in favor of the tariffs.

“So, what surprised you today?” Anderson Cooper asked lawyer and commentator Jeffrey Toobin on CNN’s AC360.

“How hostile the conservatives were to Trump,” Toobin replied.

“It’s been 10 months that he’s been president, and the Supreme Court, in mostly these short orders, has given him basically everything he wanted. But the conservatives were really loaded for bear today. They were not impressed with the tariffs. Now, how they will rule, ultimately, I don’t know. You can be deceived by oral arguments, but this was a very rough day at the office for the solicitor general.”

Cooper asked Toobin to explain further, and that’s when he dropped a bit of a bombshell that took the CNN host by surprise.

“It’s actually very simple. What the challengers to the tariffs say is that these are taxes. These are ways the government is raising money,” Toobin explained. “Under Article I of the Constitution, it is only Congress that can pass taxes. The president cannot impose taxes in this form. And that argument made a lot of headway.”

“The justices live in the real world, and they know that too,” he continued. “The solicitor general tried to make the argument not just that the tariffs were part of national security, international relations, which is something that the president is responsible for, but the money is the money. And every time they kept coming back to the fact that look, this operates like a tax, and that is not something the president can do unilaterally.”

Toobin said he expects a ruling before the end of the year, and landed a surprising twist.

“I would expect a ruling probably before the end of the year.”

“And the real complexity is, if they rule against the tariffs, they have to give all the money back,” Toobin said.

“Really?!” Cooper replied.

“Yeah, and that becomes a tremendous logistical problem and a fiscal problem for the United States because, as the president has said, this has generated a tremendous amount of money,” Toobin explained. “That’s a problem that came up in the oral argument. But if they actually rule against the president, it will be a huge issue.”

Toobin explained that SCOTUS could rule against the tariffs, but also say the money doesn’t have to be paid back.

“I think, even though legally that might be difficult to justify, logistically it would be tremendously simpler,” he said before speculating on a possible swing vote.

“The only justice who seemed completely sympathetic to President Trump was Brett Kavanaugh,” Toobin said. “John Roberts, Neil Gorsuch seemed particularly… Amy [Coney] Barrett. You know, again, they might vote with Trump, but they certainly didn’t sound like it today.

Comment

We have no tolerance for comments containing violence, racism, profanity, vulgarity, doxing, or discourteous behavior. If a comment is spam, instead of replying to it please click the ∨ icon below and to the right of that comment. Thank you for partnering with us to maintain fruitful conversation.